State v. White

Appeal
from the Circuit Court of St. Louis County 14SL-CR10027-01
Honorable Kristine A. Kerr

Lisa
P. Page, Judge

Davone
White ("Defendant") appeals his conviction after a
jury trial of robbery in the first degree, attempted robbery
in the first degree, and two counts of armed criminal action.
We affirm in part and reverse and remand in part.

BACKGROUND

On
December 14, 2014, Samuel Hoffman ("Hoffman") and
James Lent ("Lent") (collectively,
"Witnesses") were fixing Hoffman's car, in
front of his house in St. Louis County. An individual in a
blue face mask approached, gun in hand, and demanded the
Witnesses hand over their money. Lent dumped three to six
dollars on the ground, but Hoffman had no money. The
assailant took the money and absconded via a burgundy Mercury
Sable.

Lent
proceeded to follow the assailant in his own vehicle and
eventually attempted to block the assailant's escape, but
was almost "T-boned" by the assailant's
vehicle. During this pursuit, however, Lent was able to
observe the assailant's unmasked face and license plate.
Upon returning to Hoffman's residence, Lent called 911,
the two Witnesses reported their accounts to the responding
law enforcement officer.

Later
that same day, Detective Scott Cork ("Detective
Cork") investigated the license plate number, reported
by Lent, and traced the car back to Defendant. Detective Cork
and his partner drove to Defendant's residence and
observed Defendant exiting the house, headed toward the
Sable, wearing the same clothing as described by the
Witnesses.

Thereafter,
with computer assistance, Detective Cork generated a
photographic lineup; the photographic lineup consisted of a
prior photo of Defendant and five other photos selected by
Detective Cork based upon their similar characteristics as
Defendant. Both Witnesses were provided the opportunity to
view this photographic lineup and selected Defendant.

Defendant
was arrested and charged with robbery in the first degree,
attempted robbery in the first degree and two counts of armed
criminal action. Prior to trial, the State offered Defendant
a plea deal, for twenty years' imprisonment, which
Defendant rejected. After a two day trial, the jury found
Defendant guilty of all counts.

The
trial court sentenced Defendant to twenty-five years'
imprisonment. In doing so, the court stated it relied on
information in the sentencing report, the evidence at trial,
the background of the case, and the victims' trauma. The
court also stated its typical practice was to sentence
defendants for more time than what was offered in a plea
deal, so defendants would understand the consequences of
going to trial.

This
appeal follows.

DISCUSSION

Defendant
submits two points on appeal, contending: (I) the
identifications by the Witnesses were the result of
unnecessarily suggestive police procedures; and (II) the
trial court penalized Defendant for exercising his right to a
jury trial.

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